Yes, sir – very atomic!

First, let me say thank you to the folks at Concurring Opinions for giving me this opportunity to guest blog. I’m looking forward to sharing some ideas I have on law, language, patents, and science. But first, I want to talk about a really awful movie.

This weekend, I got to thinking about an old musical/cult film I had seen in college – “The 5,000 Fingers of Dr. T.” The 1953 movie is most noted for being the only feature film written by Dr. Seuss (Theodor Geisel), who also wrote the music lyrics. Quick summary of the plot – Bart is a little boy who is being forced to take piano lessons from Dr. Terwilliker. Bart hates the lessons and complains to everyone – including the friendly neighborhood plumber. Bart falls asleep and enters a fantasy world (very Wizard of Oz) where his piano teacher has become a madman. The piano teacher has imprisoned all non-piano-playing musicians and has built a piano so large it must be played by 500 little boys that the piano teacher has enslaved (including Bart). Bart tries to escape and seeks the help of the plumber, who happens to be installing sinks in the piano teacher’s institute. Working together, they build a device from the junk they have in their pockets (very MacGyver) that sucks all the noise from the giant piano. The little boys escape and the world is a better place.

So why was I thinking about this movie?

After Bart and the plumber build their fantastic device to suck noise from the giant piano, they encounter the piano teacher. The piano teacher looks fearfully at the device and asks, “Is it atomic?” Bart answers, “Yes, sir – VERY atomic!”

Sometimes it seems that courts view new inventions in precisely the same way – they are scary. And new inventions are scary for the same reasons that “atomic devices” are scary: we’ve never seen anything like them before; we don’t understand them; we’ve heard people say bad things about them; and we’ve been told that these new inventions can ruin our life. And so, as I was reading through the Bilski case this weekend, where the en banc Federal Circuit considered patent eligibility for business method patents, I couldn’t help but think of Bart and Dr. T.

While there may be many very good reasons to deny the patent in that particular case, I think the court is reacting in the way it did because business methods are scary. Although business method patents were deemed eligible for patenting ten years ago in the State Street case, the true flood of issued business method patents has just now become a reality; the court hasn’t, before now, had the chance to truly see them. And the court doesn’t understand them. The test resulting from Bilski requires a process to either be tied to a particular machine or to transform an article into a different state or thing. But when discussing this transformation in the arena of business methods, the court shows that it doesn’t understand the inputs and outputs of the process. It acknowledges that the raw materials of business method processes are often electronic signals and electronically manipulated data; however, based on the Nuijten case, which denied patent eligibility to electronic signals, the court clearly lacks any understanding of these things. Further, the Bilski opinion goes on to call additional inputs and outputs of these methods “abstract concepts.” Probably most importantly, the court has heard bad things about business method patents, including how these inventions can ruin industries (and the whole world). A look at the number of amici briefs arguing in support of the Patent Office’s rejection of these types of inventions, or even arguing further for a complete bar to the patent eligibility of business method and software patents, demonstrates how widely held is the belief that these inventions are bad.

To be fair, the Bilski opinion does not kill business method patents. Whether it does in practice or whether patent attorneys are clever enough to draft around this latest obstacles is yet to be seen. But I think we need to look more carefully at the underlying fear of the new and whether patents are being denied because inventions are scary.